Biological Resources

General
A series of laws and regulations requires the LG to identify and, if necessary, mitigate impacts to biological resources, including but not limited to endangered and threatened species, critical habitat and farmland. Violations of the Endangered Species Act and Migratory Bird Treaty Act are especially serious and can result in work stoppages and large fines. Because of the complexity of biological issues and the range of regulatory requirements, early coordination between the LG and the TxDOT district is essential.
Federal Requirements
  1. Endangered Species Act as amended
    16 U.S.C. §§1531-1544
    – Regulates impacts on endangered or threatened species, or critical habitat, and in some circumstances requires consultation with the U.S. Fish and Wildlife Service.
  2. Migratory Bird Treaty Act
    16 U.S.C. §§703-712
    – Prohibits taking, disturbing or harassing a wide range of migratory birds and their nests.
  3. Fish and Wildlife Coordination Act of 1968
    16 U.S.C. §§661-667d
    – Requires coordination with the U.S. Fish and Wildlife Service under circumstances where a U.S. Army Corps of Engineers individual permit is required.
  4. Magnuson Stevens Fishery Conservation Management Act
    16 U.S.C. §§1801-1891d
    – For projects in coastal counties, requires coordination with the National Marine Fisheries Service if the project area contains essential fish habitat in tidally influenced water.
  5. Farmland Protection Policy
    7 U.S.C. §§4201-4209
    – Requires evaluation of impacts to new right of way not developed, not urbanized and not zoned for urban use. Coordination with the Natural Resource Conservation Service may be necessary.
  6. Invasive Species Executive Order 13112
    – Requires re-vegetation according to TxDOT’s standard practices for urban or rural areas if the project includes landscaping plans.
  7. Presidential Executive Memorandum on
    Environmentally and Economically Beneficial Landscaping Practices
    4/26/1994 – Requires consideration of incorporating elements consistent with the executive memorandum if the project includes landscaping plans.
  8. Marine Mammal Protection Act
    16 U.S.C. §§1361-1423h
    – Requires coordination with the National Marine Fisheries Service if the project adversely affects tidally influenced waters.
  9. Coastal Barrier Resources Act
    16 U.S.C. §§3501-3510
    – For projects within a coastal county and located, in whole or in part, within a system unit of the Coastal Barrier Resources System (CBRS), documentation of compliance with the Coastal Barrier Resources Act is required and may include consultation with the U.S. Fish and Wildlife Service.
  10. Bald and Golden Eagle Protection Act
    16 U.S.C. §§668-668d
    – Requires coordination with the U.S. Fish and Wildlife Service if the project would result in unavoidable impacts to bald or golden eagles.
Guidance for these subjects and others can be found at the
FHWA Environmental Review Toolkit website
.
State Requirements
  1. Texas Parks and Wildlife Code §68.015
    – Prohibits capturing, trapping, taking or killing, or attempting to capture, trap, take or kill, endangered fish or wildlife. No exception is provided for construction or other projects.
  2. Texas Transportation Code §201.607
    – Requires TxDOT to establish MOUs with resource agencies.
  3. 43 TAC §§2.201-2.214
    – MOU with the Texas Parks and Wildlife Department – MOU implementing
    Texas Transportation Code §201.607
    .
Required Practices
The
LGPM Guide
provides the required practices and procedures and LG and TxDOT responsibilities associated with biological resources. In general, the LG must coordinate with the TxDOT district early in the project to identify the applicable requirements.